It has long been held by the Supreme Court (see, e.g., here and here) that a director of a company commits a tort towards a company's creditor, and is therefore personally liable towards that creditor, if the director enters into an obligation on behalf of the company while he knew or reasonably should have known that the company would not - or not within a reasonable period - be able to fulfill its obligation and would not offer recourse for the damage suffered by the creditor as a result of the malperformance, unless the director is able to show that he personally did not make a sufficiently serious mistake in this respect. In other words, this framework concerns situations in which the director essentially raised a wrong impresson - in a culpable way - of the company's solvency when entering into an agreement on behalf of the company with a third party. The framework is designed to offer a third party some protection against directors who enter into obligations on behalf of the company too carelessly.
The whole business is curious from an American perspective. In the first instance, under American law, a director acting alone and qua director is not an agent of the corporation. See Restatement (Second) of Agency § 14C (1958) (an individual director is not an agent of the corporation or its shareholders); Arnold v. Soc'y for Sav. Bancorp, 678 A.2d 533, 539-40 (Del.1996) (“Directors, in the ordinary course of their service as directors, do not act as agents of the corporation ... A board of directors, in fulfilling its fiduciary duty, controls the corporation, not vice versa.”).
A director who purports to enter into an obligation on behalf of the corporation thus is not an actual agent of the corporation. As a matter of agency law, there simply is no corporate obligation.
I suppose that in some cases, there could be sufficient facts suggesting that the board of directors has cloaked a single one of its members with authority to act so as to create apparent authority. In such a case, however, the corporation would be liable to the third party (assuming all other elements of the claim are met), not the agent.
As for cases in which a director acting without either or apparent authority, "the director essentially raised a wrong impresson - in a culpable way - of the company's solvency when entering into an agreement on behalf of the company with a third party." I suppose there might be a claim for fraud, based on the director's own misconduct in making the representation:
"Under traditional agency and tort law doctrine, corporate officers and directors are generally immune from personal liability for the acts of the corporation. The exception, of course, is if the officer or director personally participates in the tortious or illegal acts of the corporation. Under traditional principles of tort and agency law, corporate officers can be held personally liable for their own wrongful acts, regardless of whether they were acting in an official capacity or at the direction of their principal when they committed those acts."--Lynda Oswald, 44 IDEA 115 (2003)
Yet, given the well-established principle that directors acting alone cannot bind the corporation, query whether the plaintiff would be able to satisfy the reliance requirement. Also, the scienter requirement probably would pose a problem.
My sense is that in US law, these sort of tort claims are very rare. Anybody want to correct me?
Update: Israeli lawyer Itai Fiegenbaum sent along these interesting thoughts:
While the Dutch decision that you linked to might seem curious from an American perspective, I believe that international corporate law scholars (I myself am a JSD candidate in Israel) and practitioners view this decision with much less puzzlement.
I do not presume to be knowledgeable about corporate law intricacies of other jurisdictions, but potential tort liability for corporate officers has long been established in Israel. This liability is completely separate from veil piercing or liability stemming from agency law. The Israeli Supreme Court has held on numerous times that a "special relationship" existing between corporate officers and a third party may give rise to a duty of care whose breach amounts to a claim of negligence. These "special relationships" have been recognized, inter alia, in instances where a corporate officer was in charge of negotiations between the corporation and the third party which the corporation subsequently breached or when an employee suffered a work-related accident that the corporate officer "should have" prevented. I imagine that this seems peculiar to an American corporate scholar, but my uneducated guess would be that the American model (no special duty of care, liability based on agency law) is in fact the outlier.
